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TMI Blog1970 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the next higher grade is on the "basis of seniority-cum-merit" is entitled, on the plea that the list is contrary to the rules governing seniority, to claim relief on the footing that the is denied equality of opportunity in matters relating to employment. Prior to September, 1944, officers of the income-tax department were placed in two classes. In class I were placed Commissioners of Income-tax and Assistant Commissioners of Income-tax; in class II were placed Income-tax Officers, grade, grade II and grade III. In September, 1944, the service was reorganised and the Commissioners of Income-tax, Assistant Commissioners of Income-tax and Income-tax Officers, grades I and II, were placed in a new class I; and the Income-tax Officers, grade III, were placed in a new class II. On reorganisation of the service some Income-tax Officers of the former class II service were promoted to the new class I. Those promotions were not strictly based on seniority, but on their performance in the former class II service. This appeal primarily concerns four sets of officers : they are: (1) B. S. Nadkarni (hereinafter called Nadkarni) who was on reorganisation of the service promoted on A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended that no officer should be promoted as Assistant Commissioner until he had worked for not less than ten years as Income-tax Officer. The Central Government agreed with that recommendation and in consultation with the Federal Public Service Commission declared that no Income-tax Officer should ordinarily be considered for promotion as Assistant Commissioner unless he had completed at least ten years as Income-tax Officer. It was, however, found that an adequate number of officers with standing for ten years were not available for selection. By letter dated July 21, 1950, the committee decided that all Income-tax Officers with more than gazetted service for nine years may be considered for selection. At a meeting of the committee held in November, 1951, the cases of officers who had completed gazetted service for nine years as Income-tax Officers were considered, and the committee selected for promotion fifteen out of those officers as "fit for promotion" to the cadre of Assistant Commissioners. There were several vacancies likely to arise in the near future and to meet that emergency the committee decided to consider for promotion officers who had not yet completed nine years' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os. 6 to 34 were confirmed later. At a meeting held some time in September, 1959, three posts of Assistant Commissioners of Income-tax, which were previously reserved for officers of "the finance and commerce pool", were released with retrospective effect and those posts became available from May 1, 1956, for utilisation for confirmation. Respondents Nos. 6, 7 and 8 were confirmed in those three posts with effect from May 1, 1956. But in the seniority list of Assistant Commissioners "as of August 1, 1954", published by the Central Board of Revenue, Karnik was shown below Chopra, Sham Singh and Kapoor. In the next list fixing seniority in the cadre of Assistant Commissioners "as of January 1, 1958" Nadkarni and Karnik were placed below Chopra, Sham Singh and Kapoor and also below respondents Nos. 6 to 3 4. Representations made by Karnik to the Central Board of Revenue and the Central Government protesting against the determination of his seniority in the list as of January 1, 1958, were unsuccessful. A momorial submitted the President was also unsuccessful. A fresh seniority list was, thereafter, issued by the Board of Direct Taxes (which had replaced the Central Board of Revenue) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular vacancy (not being a promotion as a matter of purely local arrangement) in the grade of Assistant Commissioner, subject, however, to the condition that where two or more officers have been simultaneously selected for promotion to the grade, their relative seniority will be based on their seniority as Income-tax Officers, Class I, Grade I...." By letter dated September 9, 1952, the Government of India in consultation with the Union Public Service Commission modified rule (iii). The modified rule read as follows: "The seniority of officers promoted to the grade of Assistant Commissioner after the date of publication of the final seniority list of Income-tax Officers should be fixed according to the date of promotion to a regular vacancy (not being a promotion as a matter of purely local arrangement) in the grade of Assistant Commissioner, provided, however, that- (a) where two or more officers have been simultaneously selected for promotion to the grade, their relative seniority will be based on their seniority as Income-tax Officers, class I, grade I, and that- (b) officers whose promotion to the grade of Assistant Commissioner was deferred on the sole ground of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they must be fitted in the cadre of Assistant Commissioners above Nadkarni and Karnik. This resulted in demoting Nadkarni and Karnik below respondents Nos. 6 to 34-a consequence which could never have been envisaged. In the list of Income-tax Officers respondents Nos. 6 to 34 were placed below Nadkarni and Karnik: they were promoted as Assistant Commissioners many years after Nadkarni and Karnik were promoted and confirmed. It could not however have been intended by the rule that because Nadkarni and Karnik could not claim seniority above Chopra, Sham Singh and Kapoor, they must in the list of Assistant Commissioners be placed below all Income-tax Officers who could not be considered at the meeting when Chopra, Sham Singh and Kapoor were promoted. In the seniority list of Income-tax Officers, class 1, grade 1, Nadkarni and Karnik were placed above respondents Nos. 6 to 34. If under the proviso (b) to rule (iii) respondents Nos. 6 to 34 could not be placed below Chopra, Sham Singh and Kapoor even though those three latter officers were promoted earlier, Nadkarni and Karnik who were graded as senior to respondents Nos. 6 to 34 in the list of Income-tax Officers could not be rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioners above an officer senior to him in the list of Income-tax Officers and who was promoted before him. If respondents Nos. 6 to 34 had been considered and selected for promotion when Nadkarni and Karnik were promoted after their officiation period was over, they could not have been placed in the list of Assistant Commissioners above Nadkarni and Karnik. The circumstance that respondents Nos. 6 to 34 were not considered because they had not completed the specified minimum period of gazetted service and were considered and promoted later did not, when they were promoted, confer upon them the privilege of being placed in the list of Assistant Commissioners above Nadkarni and Karnik. We, accordingly, agree with the High Court that the seniority list must be quashed. Kalwant Rai, respondent No. 36, in this appeal has claimed that he is entitled to the benefits of the interpretation placed by us. His case has apparently not been investigated by the High Court and we do not think that at this stage we would be justified in making an order in his favour. We have set out the principles governing the seniority in the cadre of Assistant Commissioners. The Central Government will ..... X X X X Extracts X X X X X X X X Extracts X X X X
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